P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


A J AIR EXPRESS, Respondent

ERD Case No. 199604033, EEOC Case No. 26G962150

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

The administrative law judge's CONCLUSIONS OF LAW are deleted.


The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed: January 16, 1998
mittest.rmd : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

/s/ James A. Rutkowski, Commissioner


In the petition for commission review the complainant's attorney argues that the administrative law judge erred in failing to place the burden on the respondent to demonstrate good cause why the statute of limitations defense should not be considered waived and, moreover, that the respondent has failed in this burden. The commission agrees with the complainant that the respondent has failed to demonstrate "good cause" for not raising the statute of limitations defense in a timely filed answer. The respondent provided no explanation whatsoever for its failure to file an answer or to raise the limitations defense until four weeks prior to the hearing. However, Wis. Admin. Code ILHR 218.12(2) provides only that the failure to timely raise the defense without good cause "may" be held to constitute a waiver of that defense. Thus, even in the absence of good cause, the commission is not compelled to find a waiver of the limitations defense. See William L. Wilson v. Burnett County Sheriff's Department (LIRC, September 29, 1995), aff'd. William L. Wilson v. LIRC, Burnett Cty. Cir. Ct., Case No. 95-CV-129, February 22, 1996.

The principal purpose of the rule concerning timely assertion of the limitations defense is to assure that the complainant against whom it is raised will have enough advance notice of the assertion of the defense to prepare to meet it at the hearing. Rangel v. City of Elkhorn (LIRC, September 30, 1992). In this case, the complainant had ample time to prepare a reply to the defense, which was raised almost a month prior to the hearing, and has not asserted any prejudice to her ability to do so. Moreover, given that there is no dispute regarding the date on which the alleged discrimination occurred or the date on which the complaint was filed, and that the facts regarding the statute of limitations issue are straightforward, there is no reason to believe that the respondent's failure to raise the issue earlier had any affect upon the complainant's ability to prepare for and respond to the defense. Consequently, in spite of the respondent's failure to demonstrate good cause for not raising the statute of limitations defense in a timely filed answer, the commission nonetheless sees no compelling reason to conclude that the defense was waived.

Next, the complainant reiterates her argument that the statute of limitations should be equitably tolled based upon her minority. The complainant contends that in the State of Wisconsin minors are generally not legally capable of presenting claims without benefit of a guardian ad litem and that, since under Wis. Stat. 893.16 general actions on behalf of a minor in Wisconsin are permitted to be brought within two years of the date the minor attains the age of majority, tolling of the statute of limitations should be permitted in this case.

The commission has considered this argument, but finds it unavailing. The commission initially notes that the exception in Wis. Stat. 893.16 applies only to civil actions before a court and not to administrative proceedings brought under the Wisconsin Fair Employment Act, which contains no exception to the running of the statute of limitations where the complainant is a minor. Although the complainant urges the commission to consider "general civil law policy" and to apply the rule pertaining to civil actions to complaints brought by minors under the Fair Employment Act, the commission is not persuaded that it would be appropriate to do so. While a minor may generally require a guardian ad litem to bring an action on his or her behalf, this is not true in the area of employment discrimination. To the contrary, in the State of Wisconsin minors of a certain age are permitted to hold employment on essentially the same terms as adults and to file claims of employment discrimination on their own behalves without benefit of a legal guardian. Thus, the commission sees no reason to presume that the legislature regards minors as impaired with respect to the filing of discrimination complaints or that it would be appropriate to treat them as such. The commission, therefore, declines to extend the provisions of Wis. Stat. 893.16 to the instant case and affirms the dismissal of the complainant's complaint.

NOTE: The administrative law judge concluded that the Division lacks jurisdiction over the complaint because it was not filed within the statutory time limits. However, the 300-day filing limit is not a jurisdictional requirement, but a statute of limitations which is subject to waiver, estoppel, and equitable tolling. See Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335 N.W.2d 412 (Wis. Ct. App. 1983). The commission has modified the administrative law judge's decision accordingly.

cc: Russell W. Devitt
Charles B. Penwell

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